Comparative advertisement product disparagement and trademark

He preferred the other drink which according to him tastes strong and that grown up people would prefer the same. Nothing in section 29 shall be preventing the use of registered trademark by any person with the purposes of identifying goods or services as those of the proprietor provided the use: Mere puffing was not an actionable wrong.

It was sought to be contended that insinuations against all are permissible though the same may not be permissible against one particular individual. He is heard telling the purchaser that it is easy to change spectacles but not the teeth. Under Reckitt Benckiser v. The Court had based its decision mainly on the fact that the price of the container shown in the advertisement was RS.

The underlying principle being that no tradesman has a right to condemn any specific product or any specific class of products while advertising its own virtues. If he says so, he really slanders the goods of his competitors. In Dabur India Limited Vs. Reckitt and Benckiser claimed that Hindustan Unilever by claiming that HUL's Domex kills germs better than the blue-coloured liquid puts Harpic in bad light as the blue colour is an identifiable characteristic of Harpic so much so that it has become synonymous with its product in this category.

The common objective of the companies producing such goods is to maximize their profit.

Comparative Advertising And Trademark Infringement–The Indian Scenario

HUL asked the court not to adopt a hyper technical view and not to analyse an advertisement like a statute or a clause of an agreement. It should be ensured that the advertisements are not offensive to generally accepted standards of public decency; nor should they propagate products that are banned under any law.

Hindustan Coca Cola and others are endorsing their product with the help of a commercial which shows that the lead actor asks a kid which is his favourite drink. Colgate Palmolive India Ltd. Advertisement showed New Pepsodent superior in killing germs than any other toothpaste.

Reckitt and Benckiser had moved the Delhi High Court seeking restraint on the television commercial of Hindustan Unilever Limited alleging that the commercial is in bad taste and has brought discredit to its cleaning product Harpic.

What is Trademark Infringement. Comparative Advertisement and Infringement of Trademark A perspective for consumers Comparative Advertisement Comparative advertising is a widely used form of commercial advertising in many countries. Waxed Products 85 F.

This is not a case of mere puffing its products by the respondent. The growth of economy resulted in large number of disparaging advertisements which has led to large number of cases. However, it is required to be borne in the minds that in an appropriate case, if the defendant is merely indulging in truthful comparative advertising, merely comparing the features of the competing products and not giving any judgement on the same, such comparative advertising may find favour with the courts and may start the development of a completely new jurisprudence.

This suit and this application for interim injunction is occasioned by an advertisement aired on the visual media by the defendant.

Thus, commission took the position that the claim of 2. The term use has been expanded for the purpose of ascertaining infringement.

Colgate v Pepsodent: Comparative Advertising

Truth is always a complete defence against any assault or challenge regardless of whether any damage is sustained as a result of it.

A tradesman is entitled to boast about his product for the sole purpose of its promotion, howsoever untrue it may be, and for that purpose can even compare the advantages of his goods over the goods of others but there cannot be any mention of the disparagement of the competitor's good.

Consumerism is on its rise and the velocity is very high. At the same time, section 30 1 makes such use, an exception, if it is in accordance with the conditions provided under this section.

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And it was held that If a competitor makes the consumer aware of his mistaken impression, the Plaintiff cannot be heard to complain of such action.

Special care must be taken in the use of a design trademark in a comparative advertisement. This is for the reason that Article 19 2 of the Constitution permits reasonable restrictions on the freedom of speech and expression guaranteed under Article 19 1 a of the Constitution.

The Trademarks Act also applies to references to well known unregistered marks.

Comparative Advertising–A Necessary Evil

Although, for having depicted the container and the price in the advertisement together it is difficult to proceed on the basis that the defendant No. And it was held that If a competitor makes the consumer aware of his mistaken impression, the Plaintiff cannot be heard to complain of such action.

Lip movement in the ad indicated Colgate as the other toothpaste referred, although voice muted. The defendants launched an advertisement campaigning that their product i.

Colgate Palmolive India Ltd. Generally the term used in common business language is Product Disparagement. The four major cases of product disparagement considered herein for analysis are: Evidence of "passing off," where the trader knowingly and deliberately attempts to pass one product off as another, is also considered valuable in infringement law suits.

The law on comparative advertising and product disparagement, in relation to trademarks, in India, is based upon the law as laid down in Irving's Yeast Vite Ltd v FA Horse-nail.


Section 29(8) of The Trademarks Act, enunciates situations, when the use of a trademark in advertising can constitute infringement. As one may gather, comparative advertisements are nothing but comparing your product/service with that of another’s in the same field, which mostly focuses upon the price, quality and durability.

Aug 25,  · Another landmark case that dealt with the meaning of word disparagement is Pepsi Co. vs. Hindustan Coca Cola Ltd. Pepsi Co. alleged infringement of trademark as Coca Cola, vide its advertisement has disparaged the products of Pepsi Co by calling Pepsi “Bacchon Wala Drink”.

Further Coca Cola also used a bottle. Thus, it was a case of comparative advertisement where a claim could be made of disparagement of Colgate’s product. Use of Trademark in Comparative Advertisements Trademark Act, is enacted to guarantee protection to national and international brand owners, in conformity with the TRIPS Agreement.

Further, the TM Act has increased the grounds on which trademark infringement can be claimed, such as likelihood of confusion, likelihood of dilution or disparagement of a registered trademark, comparative advertising and spoken use.

Comparative advertisement and product disparagement are sensitive subjects to manufacturers of goods.

Comparative advertising and disparagement

The reason stems from the fact that consumer behavior can be influenced through comparative.

Comparative advertisement product disparagement and trademark
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Comparative advertising and disparagement - Lexology